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Smith Jr
UNITED STATES, Appellee
v.
Larry D. SMITH, Jr., Cadet Third Class
U.S. Air Force, Appellant
No. 99-0932
Crim. App. No. 32850
At trial by general court-martial, appellant was found guilty, pursuant to his pleas, of
larceny and conspiracy to commit larceny, in violation of Articles 121 and 81,
Uniform Code of Military Justice, 10 USC 921 and 881, respectively. His
case was tried by a military judge sitting alone. Appellant entered into a Stipulation
of Fact and a Pretrial Agreement. The Pretrial Agreement provided that if the
sentence included confinement or a fine, the approved sentence would not include a
period of confinement in excess of 24 months nor a fine in excess of $10,000.00.
Appellant also agreed to pay restitution in an amount not to exceed $3,000.00.
Appellant faced a maximum punishment of a dismissal, confinement for 36
years, forfeiture of all pay and allowances, and the possibility of a fine in an
unlimited amount. The sentence adjudged by the military judge on April 1, 1997,
was a dismissal, confinement for 30 months, and forfeiture of all pay and
allowances. On July 18, 1997, the convening authority approved the sentence,
except for the confinement, which was reduced to 24 months in accordance with the
Pretrial Agreement.
Following acceptance of appellants guilty pleas, the defense made a timely
motion for appropriate relief, requesting that the military judge grant 196 days of
pretrial confinement credit, asserting that appellant had been illegally punished in
violation of Article 13, UCMJ, 10 USC 813. The military judge denied the
motion, finding that the Government had not restricted appellant with an intent to
punish prior to trial. The judge further found that there were legitimate nonpunitive
governmental objectives served by the restrictions placed on appellant and that,
therefore, Article 13 was not violated in this case. We granted review of the
following issue:
WHETHER APPELLANT WAS SUBJECTED TO
ILLEGAL
PRETRIAL PUNISHMENT, IN VIOLATION OF
ARTICLE
13, UCMJ.
We hold that there was no violation of Article 13.
FACTS
Appellant was a 22-year-old cadet at the Air Force Academy involved in
approximately 40 larcenies from fellow cadets totaling more than 500 items at a
value of approximately $20,000,00. Several of these cadets were his close friends.
From fellow cadets, he stole a Rolex watch valued at $4,700.00, more than 100
musical compact discs, other watches, jewelry, gold chains, a gold wedding ring, a
gold crucifix, name-brand compact disc players, a portable television, a calculator,
designer sunglasses, jeans, clothing, and numerous other items. Appellant also stole
wallets from his fellow cadets, checkbooks, cash, credit cards, automatic teller cards,
drivers licenses, telephone cards, airline tickets, and personal effects of value to
the victims. He accessed many of the credit cards and automatic teller cards for
amounts as high as $750.00 per victim.
Appellant stole when his fellow cadets were out of their rooms at class or other
academic events, and at night when they were asleep in their rooms. He kept some
items, pawned others for cash, and discarded wallets and other items in the trash in
an effort to frustrate any subsequent investigation. He kept the cash he stole and
used it for "table dances" at a "gentlemans club" in Colorado Springs. He kept the
monies he made from items pawned. He kept the monies he received from accessing
his fellow cadets stolen credit cards and automatic teller cards. By agreement, he
shared only with his coconspirator.
On August 19, 1996, appellant was apprehended by Security Police personnel from
the Air Force Academy on suspicion of stealing from other cadets. Appellant was
then transported to a military confinement facility at Fort Carson, Colorado. He was
confined overnight, and a pretrial confinement hearing was held the next morning.
Captain (Capt) Verchio conducted the pretrial confinement hearing and determined
there was probable cause to believe appellant committed the alleged offenses but
that pretrial confinement was not appropriate or necessary. Specifically, Capt
Verchio agreed with appellants defense counsels argument at the hearing that
appellants commander had not considered lesser forms of restraint before ordering
appellant into confinement. In making this determination, Capt Verchio noted that
appellants commander had not considered admitting him "into the cadet transition
flight, and restriction to the base or cadet squadron area."
Upon return to the Academy, appellant was transferred to a "transitional squadron."
This squadron was known as Cadet Squadron 41 or CS 41. Appellant was housed
there from August 20, 1996, until his court-martial on March 31, 1997. Appellants
coconspirator was also housed in CS 41. CS 41 was located behind the 34th Training
Wing Operations Center (TWOC). Essentially, TWOC housed the command and
control area for the cadets, functioning similar to a command post. Cadets would be
assigned to CS 41 on a case-by-case basis, as determined by the Commander, HQ,
34th Training Group, USAFA, for: honor,3 military deficiency, physical deficiency,
UCMJ/OSI investigation, and academic deficiency.
Appellant was assigned to CS 41 on August 20, 1996, by letter from the commander.
The assignment referenced appellants new "Limits, Liberties and Passes," and
advised appellant that as a member of the Cadet Wing, he was still obliged to follow
the Air Force Cadet Wing Instructions (AFCWI 36-3001). Upon placement in CS
41, appellant was given additional limits beyond those stated in AFCWI 36-3001.
Also on August 20, 1996, appellant signed and acknowledged a letter from the 41st
in civilian life." A21-18, Manual for Courts-Martial, United States (1998 ed.).
Recognizing that confinement or arrest may not be appropriate for everyone accused
of a crime, but that some limit on an accuseds freedom might be necessary to
prevent further criminal activity, pretrial restraint expanded beyond confinement and
arrest to include lesser forms of restraint like restriction in lieu of arrest, first set
forth in paragraph 20b of the 1951 Manual for Courts-Martial, United States, and
conditions on liberty, first set out in RCM 304(a)(1) of the 1984 Manual for CourtsMartial, United States. All four types of pretrial restraint are contained in the current
version of RCM 304(a).
Along with the view that confinement or arrest may not be appropriate for everyone
accused of a crime, the concept developed that pretrial punishment is prohibited. In
United States v. Bayhand, supra, the Court found a violation of Article 13 when the
accused, who was in pretrial confinement, was required to work with sentenced
prisoners, attired in the uniform of a sentenced prisoner. The prohibition against
pretrial punishment is codified in Article 13 of the UCMJ, which states:
No person, while being held for trial, may
be subjected to punishment or penalty other
than arrest or confinement upon the charges
pending against him, nor shall the arrest or
confinement imposed upon him be any more
rigorous than the circumstances required to
insure his presence, but he may be subjected
to minor punishment during that period for
infractions of discipline.
Article 13 does not specifically address the other forms of pretrial restraint.
However, RCM 304(f) provides:
Pretrial restraint is not punishment and
shall not be used as such. No person who
is restrained pending trial may be subjected
to punishment or penalty for the offense
which is the basis for that restraint.
Prisoners being held for trial shall not be
required to undergo punitive duty hours or
training, perform punitive labor, or wear
special uniforms prescribed only for post-trial prisoners.
This rule does not prohibit minor
punishment during pretrial confinement for
infractions of the rules of the place of
confinement. Prisoners shall be afforded
to stop wearing BDUs in lieu of the uniform of the day. The military judge found
that appellant was not ordered to constantly wear BDUs, "and may very well have
been laboring under a misunderstanding as to the requirements which were explained
to him" by his command. Based upon these findings and upon the record, we agree
with the military judge that there was not an intent to punish or stigmatize appellant.
Commanders are often faced with the dilemma of where to place servicemembers
who present special problems, such as being held for medical reasons beyond
retirement age or end of enlistment; losing their security clearance for working in a
classified area; losing the trust of their commander when working with security
forces; or who are pending administrative discharge for other reasons. RCM 304(h)
specifically permits "limitations on a servicemember imposed for operational or
other military purposes independent of military justice, including administrative hold
or medical reasons."
Appellants placement in CS 41 could be justified merely on the basis of military
purpose under RCM 304(h), i.e., ensuring his safety. The crimes he committed were
against other cadets and occurred while he was living in the cadet dormitory. Some
of the items appellant took were of sentimental value. Even appellant admitted the
likelihood of being subjected to a "blanket party" (wrapped in a blanket and beat up).
Appellants command was also legitimately concerned about the possibility of
appellant committing further thefts against his fellow cadets.
We hold that the military judge was correct in denying appellants request for
sentence credit.
The decision of the United States Air Force Court of Criminal Appeals is affirmed.
FOOTNOTES:
1
We heard oral argument in this case at the United States Air Force Academy,
Colorado Springs, Colorado, without objection from the parties involved. See 38 MJ
at 137 n.1.
2
Judge David M. Ebel of the United States Court of Appeals for the Tenth Circuit
and Judge Daniel B. Sparr of the United States District Court for the District of
Colorado sat by designation pursuant to Article 142(f), Uniform Code of Military
Justice, 10 USC 942(f).
3